Representative government is a mighty and mostly wonderful engine, but there are times when you must appreciate one branch of government that is concerned only about the law and the justice that it is supposed to guarantee and not the wishes of competing economic interests. One instance was the Arkansas Supreme Court’s decision last week to revoke the permit to build the big coal-fired power plant in Hempstead County.
The state Public Service Commission had given Southwestern Electric Power Co. a permit in 2007 to build the plant. It was called a Certificate of Environ-mental Compatibility and Public Need, which meant that the commission found that the plant would do an acceptable amount of damage to the environment and public health and that electricity customers really needed the plant.
When it starts generating electricity, the Turk plant will pump between 5 and 6 million metric tons of carbon dioxide a year into the atmosphere. That is the greenhouse gas that is the leading cause of man-made global warming. It would produce mercury, other harmful gases and tons of ash that would present some danger to the unspoiled wilderness surrounding it.
There was ample evidence, though not taken by the commission, that vast amounts of power were already available nearby — notably at a giant merchant plant powered by clean-burning natural gas just down Highway 82 to the east that could sell the utility all the electricity it would need for its Texas, Arkansas and Louisiana customers with far less damage to the air, land and water.
But the PSC, or two of its three members, thought the company made its case for need and environmental compatibility rather well and granted the permit. People in Hempstead County wanted the plant for the jobs and the huge tax base it would provide for local governments. The big utility and the Arkansas Electric Cooperatives, which would get some of the power, were influential political forces. The state Department of Environmental Quality and the state Pollution Control Commission, whose job it is to safeguard the ecology of the state, saw no problems and signed off on the plant, too.
While those decisions were appealed to the courts, which Arkansas utility law contemplates, the utility was allowed to build the plant at full speed. The courts would be presented with a fait accompli — a wilderness cleared, a plant nearly built and more than a billion dollars spent on it — so surely they would not stop the project.
But that is exactly what happened. The Arkansas Court of Appeals last summer and the Supreme Court last week — 13 judges in all — arrived at the same conclusion. The PSC had not followed the law, which required that the question of the need for the plant and questions about its economic and environmental impact all be considered in one case because the issues were not separable. By considering the question of the need for the plant at a quiet and truncated proceeding early and avoiding important evidence to the contrary, the commission badly erred, both courts concluded.
One of the three commissioners, David Newbern, had warned his two colleagues that they were ducking their obligations under the law. Newbern, a retired Supreme Court justice, had been appointed by Gov. Beebe as a special commissioner when the third one resigned under a cloud. Sandra Hochstetter, who was appointed by Gov. Mike Huckabee, had participated in the little hearing on the need for the plant in 2006, voted to approve it and then accepted a job with one of the corporate parties to the power plant.
Don’t celebrate this victory for Arkansas’ good air and the planet’s, not just yet anyway. Congress in 2005 passed a law sought by the coal industry that encourages investors to build coal-fired generating plants by exempting wholesale producers from getting the approval of state regulators like the Public Service Commission. So with a little corporate paperwork, the parent corporation may convert it to a wholesale merchant plant, complete it and market the electricity wherever it can, including to its own subsidiaries.
It will still have to meet the standards of the federal Environmental Protection Agency, which almost certainly will impose huge costs next year on new coal-burning plants for the vast tonnage of greenhouse gases they produce.
Whoever buys the electricity from Turk will pay a pretty price for it. There will still be no winners — not in Arkansas, not anywhere.
